DECISION
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Amnesty is sought by the applicants in respect of the following:
The acts, omissions and offences of malicious damage to property and conspiracy in respect of the bombing of the ANC offices in London and the conspiracy to bomb the Communist Party offices in London on or about 14th March 1982 and all other delicts and offences which relate directly to the incident such as, inter alia, obtaining false passports and being in illegal possession of, and transporting weapons and explosives.
At the outset the Amnesty Committee would like to emphasise that this is not a case where amnesty is sought in respect of a gross violation of human rights as defined in Act 34 of 1995. The evidence was that all possible precautions should be taken to avoid the loss of human life. It cannot seriously be suggested that any individual was the target of the bombing. There is simply no corroboration for such a suggestion. To the extent that the placing of a bomb goes hand in hand with the inherent and substantial risk of injury to individuals, the factual result was that nobody was killed or seriously injured. Speculation as to what could have happened would not alter this factual result.
In dealing with the evidence, and such discrepancies as there might be, the Committee is conscious of the fact that the incident occurred more than sixteen years ago. It would have been very surprising if no discrepancies came to the fore, and would point to what has aptly been referred to as "the negotiated truth".
General Coetzee testified that he and General Mike Geldenhuys were approached by Mr Louis Le Grange, the then Minister of Law and Order, to take steps against the ANC and SACP which would indicate to them that where ever they may find themselves, it would not be out of reach of the arm of the South African Security Forces. He argued that this was necessary because leaders and operators of the liberation forces were harboured outside the Republic of South Africa where they could not be prosecuted. It would, at the same time, be an indication to foreign governments that property and even lives could be at risk if they would continue to give sanctuary to people who were at war with the South African government. In order to drive this political message home it was decided that the offices of the ANC and the South African Communist Party in London should be damaged by explosives.
General Mike Geldenhuys, the then Commissioner of Police, told Minister Le Grange that he as Commissioner of Police, did not agree with the Minister that it was the function of the Police to become involved in the demolition of buildings or attacks in foreign countries. He was firm in his conviction that the Police were an internal peace keeping force and distanced himself from the planning of, and the carrying out of, the attack in London. Minister Le Grange remained adamant that the operation should be carried out and instructed General Coetzee, the then Head of the Security Branch of the South African Police, to proceed and to instruct members under his control to plan and carry out the operation. Coetzee then identified Brigadier P Goosen as leader of the operation and he, in turn, chose Williamson as his second in commend because of the latter’s experience and background. Coetzee further testified that he accepted full overall responsibility for the planning, arrangements and logistical support of the operation. The money for the carrying out of the operation came form the government. Specific instructions were given that all steps had to be taken to avoid the loss of live. It was later testified that this was the reason why they did not attempt to detonate explosives at the offices of the South African Communist Party at 39 Gooch Street, London.
Goosen and Williamson thereafter decided to include Captains Vic McPherson, John Adams, Eugene de Kock, Jimmy Taylor and Warrant Officer Jerry Raven in the team. Raven had to obtain the explosives, put it in containers and Goosen arranged for it to be sent to London via a military intelligence diplomatic bag where it would be received by Lieutenant Castleton. The team left in groups of two with false identity and travel documents and arrived at different times in London. They assembled for the first time in London on 12th or 13th March 1982, when the final go-ahead for the operation at the ANC offices was given. They abandoned the plan to bomb the offices of the South African Communist Party because they were of the opinion that the risk of injuring people was too high. Raven reported that he had gathered the explosives and had, in the meantime, manufactured the necessary explosive devices. The team then dispersed and each member thereafter carried out his allotted task, which was worked out after the office had been kept under surveillance for a week.
Late Saturday night and during the early hours of Sunday, 14th March 1982, McPherson assisted Raven to climb over the high, locked gate of the fence around the back yard of the ANC offices and handed the explosive device to de Kock, who accompanied Raven to the back wall of the ANC offices. Raven set the explosive device to detonate between 8am and 9am on the Sunday morning. The time was chosen to enable the operatives to leave the United Kingdom from Heathrow Airport before the explosion. A further reason was to try and prevent injury or death to individuals because, in their opinion, it would have been unlikely that people would visit the offices that early on a Sunday morning. It in fact turned out that the only causality was Vernet Mbatha, who slept in a room on the top floor of the building and suffered shock and light injuries.
The operatives left London in different groups during the early hours of Sunday morning for Europe and later returned to South Africa. They were all decorated on 13th September 1982. They received the Police Star, a decoration for exceptional service, known as the SOE, from Minister Le Grange.
In the light of the evidence summarised above, the Committee has to decide whether the application satisfied the requirements of Act 34 of 1995, in so far as the receiving of amnesty is concerned. Although the Committee was not confronted with an incident involving the gross violation of human rights where a public hearing is required, it was nevertheless decided to hold a public hearing because of the import and seriousness of the offence. The matter therefore, is considered in accordance with the requirements laid down in Section 20 of Act 34 of 1995.
The Committee is satisfied that:
The applicants comply with the requirements of the Act in
so far as the formalities laid down by the Act and the
regulations are concerned.
That the acts, omissions or offences to which the
applications relate are acts associated with a political
objective committed during the course of the conflicts of
the past.
Whether the offences are in accordance with the provision of Section 20(2) and 20(3) will be discussed more fully below, as well as the question whether the applicants have made a full disclosure of all the relevant facts.
Before dealing with the question of whether the applicants made a full disclosure of all relevant facts, the Committee had to decide whether it has jurisdiction to hear an application for amnesty for offences committed in the United Kingdom. It is clear that this Committee, acting in terms of an Act passed by the South African Parliament, which can only make laws enforceable and effective within the Republic of South Africa, cannot make decisions binding on courts or bodies functioning outside the borders of South Africa. It is, however, clear from the provisions of Section 290 (7)(8) and (10) of Act 34 of 1995, that the clear intention of the legislature was to expunge all civil and criminal liability as well as all entries on records of official documents pertaining to such offences and that the offence or delict in respect of which amnesty is granted shall be deemed not to have taken place.
Whether or not this would be a factor in the granting of extradition orders is not within the ambit of the functions of this Committee to decide. It is, however, the view of the Committee that any decisions arrived at by the Committee will only be effective within the borders of the Republic of South Africa.
Notwithstanding what is said in the previous paragraph about the effectiveness outside South Africa of any order issued by the Committee, Act 34 of 1995 in Section 29(2) clearly authorised the Committee to deal with acts associated with a political objective. An act associated with a political objective is, inter alia, defined as:
"any act or omission which constitutes an offence or delict which according to the criteria in Sub-Section (3), is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic¼¼¼¼"
The Committee finds that the offences committed were advised, planned, directed, commanded and ordered inside the Republic of South Africa and committed (the main offence in any event) outside the Republic of South Africa.
In view of the decision arrived at by the Supreme Court of Appeal of South Africa in Case Number 316/97 and 317/97, that would not be the end of the matter. The Committee has to consider the effect of the decision of the Supreme Court of Appeal.
See:
Darryl Garth Stopforth v The Minister of Justice (1st Respondent),
The Truth and Reconciliation Commission
(Amnesty Committee)(2nd Respondent),
The Government of Namibia (3rd Respondent) and
The Minister of Safety and Security (4th Respondent).
Stopforth requested the Supreme Court of Appeal, inter alia, for the following relief:
"That the decision of the Minister of Justice of 10 October 1996 (ordering their surrender for extradition to Namibia) be suspended pending the adjudication by the Amnesty Committee of the Truth and Reconciliation Commission of their amnesty applications."
Stopforth applied for amnesty in respect of offences inter alia, the murder of a UN security guard and the damaging of the Untag offices) which were committed by them in Namibia while they participated in the activities of a militant organisation known as Kontra 435 based in the then SWA.
The Supreme Court of appeal confirmed the decision of the Court a quo that the Amnesty Committee cannot grant amnesty for deeds committed in Namibia, because it does not have jurisdiction over crimes committed in SWA in 1989, as those crime could not be tried in South African Courts.
The Court further found:
"The acts of the Applicants in SWA in 1989 were not part of the conflicts of the past as intended in the TRC Act. These acts were not directed against South African opponents, e.g. the liberation groups or political organisations opposing the then government. The Appellants went to SWA to lend support to a conflict between political groups in that territory. What is clearly intended by the TRC Act is that the acts committed must have been associated with the conflicts of our South African past. They must have sprung from our deeply divided society. The envisaged amnesty must be given to reconcile opposing South African people. An internal conflict between groups in the South West African Society falls outside the jurisdiction of the Amnesty Committee. The Acts committed by the Appellants did not arise from our past – when these acts were committed the South African government had accepted Resolution 435 and was co-operating with the UN to organise a free and fair election. Swapo, the liberation movement in SWA at the time, was not a role player on the South African political scene. In any event, the attacks by the Appellants were not committed against Swapo. To grant amnesty for the acts the Appellants committed in Outjo would play no role in bringing about reconciliation between people of South Africa."
and for these reasons held the amnesty could not be granted.
In the present applications (as in the majority of other applications) the offences being dealt with indeed relate to the conflict of our South African past. They did spring from our deeply divided society. They were directed against opponents in the South African political context and not against foreigners.
Later on in the decision the Supreme Court of Appeal held:
"(34) There is also an alternative way by which the same conclusion can be reached. The offences in respect of which the extradition of the Appellants is sought are murder, theft and the unlawful possession of a machine gun, hand and rifle grenades and explosives, committed in SWA. A South African court will only have jurisdiction to try persons accused of committing crimes if the offences were committed within South Africa and in general if they were committed in the court’s territorial area of jurisdiction. An exception to this rule is the so-called extra-territorial offences, such as treason for which a person may be prosecuted in South Africa even if the offence was committed abroad. The offences committed by the Appellants in Outjo do not fall into the class of extra-territorial crimes. It follows that no South African court has jurisdiction to try the Appellants for the offences for which their extradition is sought."
"(35) In my opinion it is clear that Parliament could never have intended to confer on the Amnesty Committee the power to grant amnesty in respect of offences committed outside South Africa which are not triable in this country but in another country in which amnesty purportedly conferred by the Amnesty Committee would not be recognised. The power conferred on the Committee to grant amnesty in respect of offences committed outside South Africa can, in my view, only be exercised in respect of so-called extra-territorial offences triable in this country. The crimes committed by the Appellants at Outjo do not belong to the latter category."
The Committee again refers to the provisions of Sections 20 (7), 20 (8) and 20 (10) of Act 34 of 1995, while reiterating that decisions of this Committee cannot be binding on courts or bodies functioning outside the borders of South Africa. Whether South African courts would be bound by decisions of the Amnesty Committee in cases brought before them in respect of delictual claims arising from instance in the United Kingdom, would be for the trial court to decide. It is clear that the Supreme Court of Appeal did not deal with this aspect. The court had to decide whether a foreign country’s right (more specifically the right to extradition) would be affected by decisions of the Amnesty Committee.
In dealing with amnesty matters the Amnesty Committee remains mindful of the conclusion arrived at by the Constitutional Court in Azapo and Others v President of the Republic of South Africa 1996(4) SA 671 at 698:
"In the result, I am satisfied that the epilogue to the Constitution authorised and contemplated "an amnesty" in its most comprehensive and generous meaning so as to enhance and optimise the prospects of facilitating the constitutional journey from the shame of the past to the promise of the future."
The Committee further finds that all the applicants fall within the categories envisaged in Section 20 (2)(b) or (e) of the Act referred to.
It is also clear that the motive behind the whole operation was associated with a political objective. Coetzee testified:
"It was decided to strike at the offices of the ANC and South African Communist Party in London – the objective of the attack was not the British Government but the ANC/SACP. The secondary accomplishment was demonstrating to the British Government, South Africa’s disenchantment at allowing the ANC and SACP to operate from its soil, which was a bonus. The fact is that is was forcefully brought to the attention of the ANC/SACP alliance that they cannot feel safe to plan and orchestrate acts of terrorism against the Republic from foreign countries."
All the applicants associated themselves with this objective. It is clear that the act was primarily directed at political opponents, that it related to the conflicts of the past, that it was carried out under the orders of the Minister of Law and Order, Mr Le Grange, and with his approval, as demonstrated by the subsequent decoration of the applicants. The acts are in view of the Committee also not disproportionate to the political objective pursued.
The Committee concludes that all the applicants met the requirements laid down in Section 20 Sub-Section (2) and (3).
It remains to be considered whether the applicants made a full disclosure of all relevant facts, as required by Section 20 (1)© of the Act. The Act does not require an applicant to make full disclosure of every minute detail of an operation. It may not be relevant whether a deceased received 20 or 25 stab wounds, whether 5 or 10 shots were fired. On the other hand it may be relevant whether 5 or 50 shots were fired. What may be relevant in one case may not be relevant in another. It would all depend on the circumstances. Different applicants may in their own minds differ in what they consider to be relevant. The same may be the position with different members of the Committee. What would be "all the relevant facts:" should, however, not be tested subjectively. Objectively, it would be relevant in a murder case to ascertain by whom, when, where, how, why and under what circumstances a human being was deprived of his life. It would also be relevant as to what happened immediately prior to his death and what happened to the corpse. In the present bombing incident it would not be relevant to know who actually put the detonator in place or who stood guard on the left corner. The fact is that all the applicants associated themselves with the operation and had the common purpose to damage the ANC offices in London by the use of explosives. Whether 5kg or 500kg were used would only be relevant to consider whether the result was disproportionate to the objective sought to be achieved. In the present instance the Committee found that this was not the position.
The Committee must decide whether in the present applications all the applicants made full disclosure of all relevant facts necessary to enable the Committee to decide whether the requirements set out in Section 20(2) and 20(3) have been met. The relevant facts must be relevant to the issues to be decided by the Committee and must relate to the requirements laid down by the Act. Side issues would not be relevant.
It has often been stated by our courts and academics that the word "relevant" or the concept "relevance" does not have the same meaning for the lawyer as it has for the logician. To the lawyer, evidence is relevant if it is capable of inducing rational persuasion as to the existence or non-existence of a fact in issue. It would also be relevant if it would impact on the reliability of other evidence or the credibility of witnesses. This, however, should not be interpreted as a free licence for representatives or parties appearing before the Amnesty Committee to carry on for hours or days with questions or evidence on side issues or facts which cannot and would not assist the Committee in deciding whether the requirements for the granting of amnesty have been met or not. It should be borne in mind that evidence or questions which may create side issues which may unduly cloud the main issues and where its proof or counter-proof would take up undue time or would take the other side by surprise, should be avoided.
This is not stated because the Amnesty Committee has a limited time in which to complete its task and may even under the authority of Section 34 (3) of Act 34 of 1995, in order to expedite proceedings, place reasonable limitations to the time allowed in respect of the cross-examination of witnesses. This is stated because it forms part of the law of evidence and it would be helpful if practitioners would keep this in mind in their efforts to assist the Committee in fulfilling its task.
It would be extremely helpful if practitioners would analyse what the requirements of Section 20 (1), (2) and (3) are and direct the evidence towards proving what is required in a particular sub-section or in cross-examination to point out that those particular requirements have not been met. See also:
S v Tswazi: 1988(1) SA 851 at 858C – 859C.
What was said in the passages referred to can also be fruitful if adhered to in Amnesty hearings.
In conclusion, the Committee finds that all applicants have made full disclosure of all relevant facts as required in terms of Section 21(1)(c) of Act 34 of 1995.
In the light of the above quoted decision of the Supreme Court of Appeal the following decision is made:
Amnesty is GRANTED in respect of the acts, omissions and offences falling within the jurisdiction of the South African Courts flowing from, and directly related to, the malicious damage of the ANC offices in London and the conspiracy to damage the offices of the South African Communist Party in London on or about 14th March 1982 including, inter alia, acts, omissions and offences relating to the obtaining of false passports, the travelling therewith and being in illegal possession of or the transporting of weapons and explosives.
Signed at......................... on the.......... day of ...............1999.
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WILSON J
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C DE JAGER SC
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J.B. SIBANYONI
